Unlawful Non-Citizens (HSC SSCE Legal Studies): Revision Notes
Unlawful Non-Citizens
Introduction to unlawful non-citizens
Under Australian immigration law, the term unlawful non-citizens refers to individuals who are present in Australia without holding the appropriate visa. This legal classification is established under s 14 of the Migration Act 1958 (Cth), which forms the primary legislative framework governing immigration and citizenship matters in Australia.
The consequences of being classified as an unlawful non-citizen are significant. According to the Migration Act, individuals in this category face several legal sanctions. Under s 189, they may be placed into immigration detention if they do not voluntarily depart Australia. Furthermore, s 198 provides authorities with the power to remove these individuals from Australian territory. If removal occurs, s 195 imposes strict time limitations on any subsequent visa applications to re-enter Australia, effectively restricting their ability to return to the country for a specified period.
The Migration Act 1958 (Cth) creates a comprehensive system designed to identify, detain, and remove those who lack lawful immigration status, reflecting Australia's approach to managing border security and immigration control.
Types of unlawful non-citizens
There are two distinct categories of unlawful non-citizens in Australia, each with different circumstances leading to their unlawful status.
Over-stayers
Over-stayers represent the largest proportion of unlawful non-citizens in Australia. These individuals initially enter Australia lawfully by obtaining a temporary visa, such as a student visa or tourist visa. However, they subsequently fail to depart Australia when their visa expires. This transforms their status from lawful temporary visitors to unlawful non-citizens.
The over-stayer category includes people who may have originally complied with all entry requirements but then chose to remain in Australia beyond their authorised period of stay. This might occur for various reasons, including employment opportunities, family connections, or changing circumstances in their home country.
Border applicants and asylum seekers
The second category comprises individuals who arrive in Australia without any valid entry permit or visa. This group is often referred to as border applicants or, more colloquially, 'boat people' due to the fact that many have travelled by sea to reach Australia's northern coastline.
Since the 1990s, the majority of unauthorised maritime arrivals have originated from countries experiencing significant conflict or persecution, particularly Afghanistan and Iran. Many of these individuals have fled their countries due to genuine fears of persecution, violence, or death. Their journey to Australia frequently involves people smuggling operations.
People smuggling is defined as the organised illegal movement of people across international borders, typically in exchange for a fee. While the term 'illegal immigrants' has been commonly used in public discourse, many advocates and legal professionals prefer the term asylum seekers when referring to border applicants. This preference reflects the recognition that many of these individuals are fleeing life-threatening situations and may face execution or severe persecution if returned to their countries of origin.
A critical consideration is that many asylum seekers are unable to access Australia's offshore humanitarian program due to practical and safety concerns. For individuals fleeing persecution, the process of applying for a passport or visiting an Australian embassy in their home country may expose them to significant danger from the very authorities or groups they are attempting to escape. Consequently, these individuals may have no safe alternative but to attempt to reach Australia by irregular means and then seek protection under the onshore component of Australia's refugee program.
Background: Protection visas
To understand the situation of unlawful non-citizens, particularly asylum seekers, it is important to understand Australia's protection visa system. This provides the legal pathway for those seeking refugee status.
Permanent protection visa (PPV)
Permanent Protection Visas are available to individuals who entered Australia on a valid temporary visa and subsequently applied for refugee status whilst in the country. When an application for a PPV is lodged, applicants typically receive a bridging visa.
A bridging visa is a permit allowing an individual to remain in Australia temporarily while arrangements are made either to depart the country or to apply for permanent residency. Many bridging visas include work rights, enabling applicants to support themselves financially during the processing period. Applicants are also eligible for government assistance, including financial support for basic living expenses and healthcare services.
If granted a PPV, recipients gain access to comprehensive social services including the Adult Migrant English Program, age and disability pensions, and family tax benefits. They also acquire the right to sponsor family members through Australia's offshore humanitarian program.
Temporary protection visa (TPV)
The Temporary Protection Visa has had a complex and politically contentious history in Australian immigration policy. In 1999, the Howard Coalition government introduced the three-year TPV specifically for individuals who arrived in Australia without a valid visa and subsequently claimed refugee status. Applicants were required to satisfy health and character requirements.
TPV holders received three years of temporary residence, after which they could apply for another TPV or, in limited circumstances, seek a PPV. However, TPVs provided significantly reduced entitlements compared to permanent protection visas. Holders had only limited access to government settlement assistance and did not possess an automatic right to sponsor family members to join them in Australia. Additionally, if TPV holders departed Australia, they required special governmental approval to re-enter.
In 2008, the Rudd Labor government abolished TPVs, meaning all border applicants who satisfied refugee criteria received permanent protection visas instead. However, this created a significant disparity between visa applications and available places. For example, during 2013–14, more than individuals applied for protection but only visas were granted. Those who failed to meet refugee criteria faced removal from Australia.
In December 2014, following substantial political debate and despite opposition from other political parties, the Abbott Liberal government successfully reintroduced Temporary Protection Visas.
Laws and policies relating to border applicants
Ongoing government concerns
During 2000 and 2001, the Howard government expressed significant concerns regarding the arrival of border applicants by boat, particularly those transported through people-smuggling operations from Indonesia to Australia. In this period, approximately people arrived on boats. The government articulated several concerns:
Key Government Concerns:
Security and criminal risks: There were concerns that unauthorised arrivals might pose threats to national security, potentially including terrorism risks. The lack of standard immigration processing and background checks meant that individuals entering without proper documentation could not be adequately screened.
Financial burden: The government highlighted the substantial costs associated with processing border applicants, including detention, assessment procedures, and legal processes.
Health and quarantine concerns: Unauthorised arrivals who had not undergone standard health screening were viewed as potential health and quarantine risks, affecting both public health and agricultural biosecurity.
Sovereignty issues: The government emphasised that unauthorised arrivals represented an infringement of Australia's sovereign right to control its borders and determine who may enter Australian territory.
Criminal networks: People smugglers were characterised as criminals frequently connected to broader organised crime networks, creating additional law enforcement concerns.
Common Misconceptions and Stereotypes
Public discourse during this period also reflected several misconceptions and stereotypes about asylum seekers. Some commonly expressed views included:
- The notion that attempting to enter Australia without proper documentation was unfair to asylum seekers who followed official channels and 'waited their turn in the queue'
- Suggestions that by paying people smugglers, asylum seekers were contributing to the continuation of exploitative and illegal activities
- Assumptions that individuals who could afford smuggler fees must be wealthy and therefore not genuinely in need
- Beliefs that economic opportunities rather than persecution were the primary motivation for irregular migration
Public opinion strongly supported restrictive measures. A 2001 poll indicated that of Australians agreed with the government's position that unauthorised arrivals should be prohibited from entering Australian waters, as exemplified by the MV Tampa incident. More recently, a 2014 poll found that of surveyed Australians believed most boat arrivals were not genuine refugees, whilst thought the government should adopt even harsher policies towards these arrivals.
Legislation and efforts to target people smugglers
Following the MV Tampa incident in August 2001, the Australian Parliament enacted extensive amendments to the Migration Act 1958 (Cth). The most significant amendments, passed in 2001 and 2005, fundamentally altered the legal status of certain Australian territories.
Excised offshore places: These amendments redesignated numerous Australian islands, including Christmas Island and Ashmore Island, as 'excised offshore places'. This designation means these territories are excluded from being considered part of Australia for immigration law purposes. Consequently, individuals who land on an excised offshore place with the intention of entering Australia become ineligible for permanent Australian visas, significantly limiting their immigration options.
Judicial review limitations: Additional amendments restricted the ability of courts to exercise common law powers in favour of asylum seekers. Section 474 of the Migration Act declares that decisions made under the Act are final and therefore not subject to judicial review, limiting asylum seekers' access to legal remedies.
Identification requirements: Section 166 mandates that persons arriving in Australia must present identification documents. Section 190 provides that individuals who fail to present proper identification may be detained.
There is considerable debate about whether making entry to Australia more difficult for asylum seekers, or implementing measures such as mandatory detention, effectively deters people smugglers. Critics argue that unscrupulous smugglers exploiting others' fear and desperation remain indifferent to the conditions asylum seekers face upon arrival in Australia. Furthermore, most asylum seekers lack detailed knowledge of Australia's domestic immigration policies, and many are willing to accept significant risks given the life-threatening conditions they are fleeing.
Alternative approaches emphasising international cooperation and joint policing efforts against smuggling networks have been proposed as potentially more effective and just responses.
International cooperation - The Bali Process
One significant international initiative commenced in February 2002 when Australian Foreign Minister Alexander Downer and Indonesian Foreign Minister Dr N. Hassan Wirajuda co-hosted a regional ministerial conference in Bali addressing 'People Smuggling, Trafficking in Persons and Related Transnational Crime'. This initiative, known as the 'Bali Process', established a framework for regional cooperation on these issues. The process has continued operating, with a Regional Support Office established in Thailand in 2012 to facilitate ongoing collaborative efforts between countries in the region.
Criminal penalties for people smugglers: Some Migration Act amendments specifically target people smugglers themselves. Sections 233A to 233E establish substantial criminal penalties for bringing people to Australia illegally. Convicted people smugglers face imprisonment terms ranging from to years, financial penalties of to penalty units, or both.
A penalty unit is a statutory financial penalty for an offence, calculated by multiplying a monetary amount by the number of penalty units specified for the offence. The monetary value of each penalty unit can be adjusted over time without requiring amendments to the legislation itself, allowing penalties to maintain their deterrent value despite inflation.
Case study: The MV Tampa incident (2001)
Case Study: The MV Tampa Incident (2001)
The MV Tampa incident represents a defining moment in Australia's approach to unauthorised maritime arrivals and illustrates the practical application of border protection policies.
The Incident: In August 2001, the MV Tampa, a Norwegian cargo vessel, was sailing in international waters between Indonesia and Australia when it encountered a distressed boat carrying asylum seekers. Following international maritime law obligations to rescue persons in distress at sea, the captain rescued all individuals from the sinking vessel.
Government Response: The Australian Government instructed the MV Tampa not to enter Australian territorial waters. Despite this directive, the captain, concerned about the deteriorating conditions on his vessel and the welfare of the rescued individuals, proceeded toward Christmas Island. In response, the Australian Government deployed the Special Armed Services to board the vessel. Naval and air force patrols of waters between Australia and Indonesia were intensified, and emergency federal legislation was rapidly enacted to provide clearer legal authority for the government's actions.
The Standoff: The government refused to accept the asylum seekers onto Australian territory, asserting that since they had departed from Indonesia, they should either return to that country or be taken to Norway (the flag state of the MV Tampa). The government's position emphasised Australia's sovereignty and its right to determine who could enter Australian territory. This standoff attracted significant international attention and lasted for ten days before Nauru and New Zealand agreed to accept the group of people, resolving the immediate crisis.
Impact: The incident catalysed major policy changes and legislative amendments, fundamentally reshaping Australia's approach to maritime asylum seekers and contributing to the excision of offshore territories from Australia's migration zone.
Government response to border applicants: Recent developments
Recent government policy has focused on border turn-backs and offshore processing. Between December 2013, when the turn-back policy formally commenced, and August 2015, Immigration Minister Peter Dutton revealed that people on boats had been turned back from Australian waters. This included a vessel carrying people from Vietnam that was returned in mid-2015.
The government has argued that the turn-back policy serves multiple objectives. Firstly, it aims to prevent deaths at sea by discouraging people from undertaking dangerous maritime journeys. Secondly, it seeks to dismantle people-smuggling operations by removing the prospect of successful arrival in Australia. Government ministers have stated that if people smugglers observe successful ventures reaching Australia, this acts as encouragement for continued smuggling operations.
Policy Controversy
The policy has proven highly controversial. Supporters argue it has effectively reduced maritime arrivals and prevented deaths at sea. Data indicates that boat arrivals have substantially decreased since the policy's implementation.
Critics, however, argue the policy is cruel and potentially violates Australia's international obligations. Greens Senator Sarah Hanson-Young argued that turn-backs merely force people back to unsafe situations where they face other life-threatening dangers, and that the government's secrecy about 'on-water operations' prevents proper accountability regarding the fate of those turned back.
The political debate has extended across party lines. At Labor's national conference, Opposition Leader Bill Shorten resisted attempts by the Left faction to amend the party's platform to prohibit future Labor governments from turning boats back to Indonesia, demonstrating the politically sensitive nature of this issue across Australian politics.
Remember!
Key Points to Remember:
- Unlawful non-citizens are people in Australia without a valid visa, as defined by s 14 of the Migration Act 1958 (Cth)
- There are two main types: over-stayers (those who enter legally but don't leave when their visa expires) and border applicants/asylum seekers (those who arrive without any valid visa)
- Border applicants arriving without valid visas can be detained (s 189) and removed from Australia (s 198), with strict restrictions on future re-entry (s 195)
- People smuggling involves the organised illegal movement of people across borders for a fee, with penalties of 10–20 years imprisonment and/or 1,000–2,000 penalty units
- The MV Tampa incident (2001) led to major legislative changes, including the creation of excised offshore places like Christmas Island, which are not considered part of Australia for immigration purposes
- International cooperation through the Bali Process represents an alternative approach to addressing people smuggling through regional collaboration
- The turn-back policy, reintroduced in 2013, has significantly reduced boat arrivals but remains highly controversial regarding humanitarian and legal obligations